Villiers v Villiers

This appeal concerned the jurisdiction of an English court to make a maintenance order in favour of the wife (“W”) pursuant to s.27 of the Matrimonial Causes Act 1973 (“MCA”) in circumstances where the parties lived for most of their marriage in Scotland and the divorce proceedings issued by the husband (“H”) were conducted in Scotland.

H applied for an order to stay or dismiss W’s application under s.27 MCA on the basis that the English court either did not have or should not exercise jurisdiction to hear the application. The High Court rejected H’s challenge to the jurisdiction of the English court and made an order for, amongst other things, interim periodical payments of maintenance by H. The appeal was dismissed by the Court of Appeal.

Three judgments were delivered by the Supreme Court: Lord Sales (with whom Lord Kerr agreed), Lady Black and Lord Wilson (with whom Baroness Hale agreed).

All members of the Court reached the following conclusions (rejecting certain arguments raised by the Appellant and/or Secretary of State):

1.     The EU Maintenance Regulation does not have the effect of allocating jurisdiction to hear maintenance applications between various parts of the UK.

2.     The wording of Section 27(2) MCA does not preclude an English court from making an order for maintenance in a “purely internal” case.

3.     An English court does not have the discretion to stay proceedings before it on the ground of forum non conveniens (but, in respect of Lord Wilson, this conclusion was reached on a contingent basis, turning on his findings on the scope of Article 13 of the EU Maintenance Regulation).

4.     The removal by Schedule 6 of the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (“CJJMR”), which imported the EU Maintenance Regulation into domestic law, of a general discretion to stay proceedings on the ground of forum non conveniens was not ultra vires the Secretary of State’s powers under section 2(2) of the ECA 1972.

The issue on which the members of the Court disagreed was as follows:

“Is H’s divorce proceeding in Scotland was a “related action” for the purposes of Article 13 of the EU Maintenance Regulation and, pursuant to that provision, should the English court decline jurisdiction in respect of W’s claim for a maintenance order s.27 MCA?”

Lord Sales and Lady Black held that the divorce proceedings and application for maintenance were not “related actions”, reasoning that (i) Schedule 6 of the CJJMR has to be interpreted in view of the object of the EU Maintenance Regulation to give the maintenance creditor the right to choose the jurisdiction in which to bring her claim; (ii) for this reason, “actions” should be construed narrowly as referring primarily to maintenance claims under the EU Regulation; and (3) any extension of the concept of “related action” beyond this needs to be confined to cases in which the risk of conflicting judgments is very clearly made out. It was not made out on the present facts because there was no relevant connection between the W’s maintenance claim in England and the proceedings concerning marital status in Scotland.

Lord Wilson (dissenting) preferred a broader interpretation of Article 13, finding that it applied where it was expedient to hear and determine together the issues raised in the two actions and where it was possible to do so because the actions could be consolidated in the court first seised.

The case has potentially wider implications, outside the family law context, in relation to the Court’s findings on the broad power conferred on the Secretary of State under s.2(2) of the ECA 1972 and the scope of Articles 29 and 30 of the Brussels Recast Regulation, which mirror Articles 12 and 13 of the EU Maintenance Regulation.

A copy of the judgment can be found here.

Gayatri Sarathy acted for the successful Respondent.

Sir James Eadie QC and Jason Pobjoy acted for the Intervener, the Secretary of State for Justice.